Passage of Amendment 64 brings more questions than answers

Colorado’s legalization of marijuana on Tuesday hasn’t just created a political uproar. It’s also created a legal quagmire.
“Millions of dollars will be spent litigating this poorly crafted, poorly thought out, poorly designed ballot initiative,” predicted Senate Majority Leader John Morse,...

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+ captionMedical marijuana is packaged for sale in 1-gram packages at the Northwest Patient Resource Center medical marijuana dispensary, Wednesday, Nov. 7, 2012, in Seattle. After voters weighed in on election day, Colorado and Washington became the first states to allow possession of up to 1 oz. of legal pot for recreational use, but they are likely to face resistance from federal regulations. (AP Photo/Ted S. Warren) Photo by

The amendment’s effects will be felt almost immediately — after the secretary of state certifies Tuesday’s election results, Colorado Gov. John Hickenlooper is required to sign a proclamation by Jan. 5 that says the amendment is part of the state Constitution.

That means that on Jan. 6, possession and consumption of up to an ounce of marijuana will be legal, and individuals can grow up to six marijuana plants. Amendment 64 supersedes any state or local laws that conflict with it.

But it’s not that simple. Local governments can opt out of the amendment’s directives. And plenty of state lawmakers say the implications of the amendment and its directives will take years to shake out.

The most obvious example is that marijuana possession remains illegal under federal law — possession of any amount of marijuana is punishable by up to a year in jail and a $1,000 fine.

And those who sell more than 1,000 kilograms of marijuana can get up to life in prison under federal law, and it’s not an unreasonable stretch to think that retail stores may dole out that much over time.

“You’d be nuts to start up this business and risk a federal felony for operating a criminal enterprise,” said Morse.

Marijuana stores will have to wait for the Legislature to enact industry rules, and will only be able to get business licenses in January 2014.

There are also questions over legislative procedures, law enforcement, implications on the medical marijuana industry, and supposed tax income from new retail marijuana stores.

Amendment 64 states that the first $40 million annually from a new excise tax on marijuana sales would be devoted to education capital construction. But the excise tax must be approved by the voters, and it takes a two-thirds majority of the Legislature to get such a measure onto the ballot.

Which means that the $40 million may never be realized if voters turn down the tax question next year, said Morse.

“The Legislature’s not going to be able to do it, for crying out loud,” Morse said, exasperated.

There might be another catch regarding the tax and the state’s Taxpayer’s Bill of Rights requirement that any tax increase be voted on by the people.

“(Amendment 64) says we shall ‘enact an excise tax.’ So we just may have repealed TABOR,” said Morse. “That’s something I’m going to be exploring.”

Colorado Springs Rep. Mark Waller, a Republican lawyer, said he believes that even if stores generate $40 million a year, the money will wind up going to legal fees, prosecutions and regulations.

“It’s not like you just create regulation and that’s it. That costs a whole lot of money to enforce,” Waller said. “It’s going to increase the number of convictions and penalties — lot more burglaries, theft and other theft.”

Amendment 64 expressly states it doesn’t change medical marijuana laws, but that may not matter, said Massey.

Massey was a central figure for years in forming state regulations for medical marijuana dispensaries, and he said the federal government mostly had stayed away from dispensaries because they were content with state rules. But they might not keep their distance if marijuana is legalized for everyone.

“It’s bad news for our patient base,” Massey said.

Medical marijuana was approved by Colorado voters in 2000, and the Legislature still was passing regulation bills in 2012, Massey noted.

Amendment 64’s proponents have long argued that marijuana should be legalized and taxed under the same formula as alcohol. That’s a premise that Rep. Pete Lee, D-Colorado Springs, supports.

“That’s really the underpinning of it, to try and track that regulatory scheme,” Lee said.

But the concept is flawed, said state Rep. Bob Gardner, R-Colorado Springs.

Gardner, who chairs the House Judiciary Committee, said the alcohol comparison is “a farce,” partially because of the amendment’s conflict with federal laws but also because the Legislature may not even pass any regulations.

Gardner pointed to a bill that has been introduced twice to establish a driving under the influence limit for marijuana users. Both times, the bill failed, after bitter fights.

“I intend to impose as many restrictions as possible, and clamp down,” said Gardner.

Waller, who sponsored the marijuana DUI bill in the House this past session, said he plans on running it again.

Gardner said police officers will have difficulty dealing with potential violators.

“If I stop you in a car and have a reason to do a search, and I find an ounce in your pocket, then the first thing the officer will have to figure out is whether it’s an ounce. Will they have to weigh it there? What do they do?” said Gardner.

“I can already hear the wailing and gnashing of people who say, ‘What if it’s 1.1 ounces?’”

Colorado Springs Police Chief Pete Carey said in a statement that he has “more questions than answers,” but promised to carry out the will of the people.

The bottom line for now, though, is that no one has any answers.

“I don’t have a vision for what that environment should look like, or, frankly, what the Constitution is going to allow,” said Waller. “It’s going to be a long time coming before this is completely settled.”